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The right to acquire property is fundamental and marijuana is property. The only logical conclusion is the right to acquire marijuana must be fundamental.. If A=B and B=C then A=C.

Lord Camden in Entick v. Carrington: “ ‘The great end for which men entered in society was to secure their property.’ ” Boyd v. United States, 116 U.S. 616, 627; 6 S.Ct. 524 (1886). “The right to enjoy property … is in truth a ‘personal’ right … [A] fundamental interdependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other. That rights in property are basic civil rights has long been recognized.” Lynch v. Household Finance Corp., 405 U.S. 538, 552 (1972).

“[T]he Constitution recognized the right of property… and made no distinction between [this] description of property and other property owned by a citizen, no tribunal, acting under the authority of the [State of Maine], whether it be legislative, executive, or judicial, has a right to draw such a distinction or deny to it the benefit of the provisions and guarantees which have been provided for the protection of private property against the encroachments of the Government.” Scott v. Sanford, 60 U.S. 393, 451, (1857).

“Such rights ……do not vanish simply because the power of the state is arrayed against them. Nor are they enjoyed in subjection to mere legislative findings.” Nebbia v. New York, 291 U.S. 502, 548; 54 S.Ct. 505 (1934).

“The right to acquire, enjoy, and dispose of property is declared in the constitutions of several states to be one of the inalienable rights of man; but this declaration is not held to preclude the legislature of any state from passing laws

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respecting the acquisition, enjoyment, and disposition of property.” Crowley v. Christensen, 137 U.S. 86, 90, (1890); Maine Constitution Article I § 1.Natural Rights.

D. State Police Power Is Fundamental Not Frivolous

“The fundamental guaranties of the Constitution cannot be freely submerged if and whenever some ostensible justification is advanced and the police powerinvoked.” Nebbia v. New York 291 U.S. 502, 546 (1934).”

“[T]he police power of the State…….can only interfere with the conduct of individuals in their intercourse with each other, and in the use of their property.” Munn v. Illinois, 94 U.S. 113, 145 (1876).

“[T]he police powers … ‘are nothing more or less than the powers of government Inherent in every sovereignty …. the power to govern men and things.’” Munn v. Illinois, 94 U.S. 113, 125, (1876).

“It is the governmental power of self-protection and permits reasonable regulation of rights and property in particulars essential to the preservation of the community from injury.” Panhandle Eastern Pipeline Co. v. Highway Comm’n, 294 U.S. 613, 622, (1935).

“The power of the State over the property of the citizen under the constitutional guaranty is well defined … The State … may control the use and possession of [plaintiff’s] property, so far as may be necessary for the protection of the rights of others. The doctrine that each one must so use his own as not to injure his neighbor-sic utere tuo ut alienum non laedas-is the rule by which every member or society must possess and enjoy his property; and all legislation essential to secure this common and equal

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enjoyment is a legitimate exercise of State authority.” Munn v. Illinois, 94 U.S. 13, 145 (1876).

“‘[A] governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.’” Griswold v. Connecticut, 381 U.S. 479, 485 (1965); NAACP v. Alabama, 377 U.S. 288, 307 (1964).

1. Public Health Is Fundamental Not Frivolous

“The police power may be exerted ……to invade rights …….when such legislation bears a real and substantial relation to the public health [and] safety.” Liggett Co. v. Baldridge, 278 U.S. 105, 111,112; 49 S.Ct.57, 59 (1928).

“[P]ublic interest demands that all dangerous conditions be prevented or Abated.” Camara v. Municipal Court 387 U.S. 523, 537 (1967).

It is common knowledge, unlike alcohol, the recreational use of this property, described as marijuana, can not lead to an accidental overdose and death. MARIJUANA RESCHEDULING PETITION Docket No.86-22 (1988)Part VIII. See attached document.

Marijuana is safe to use by adults without medical supervision.

The Federal government has classified Marijuana as a schedule I controlled substance. “The constitutionality of a statute, valid on its face, may be assailed by proof of facts tending to show that the statute as applied to a particular article is without support in reason because the article, although within the prohibited class, is so different from others of the class as to be without the reason for the prohibition, United States v.

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Carolene Prod. Co.304 U.S. 144, 153-54 (1938).

2. Justification Is Fundamental Not Frivolous

“[S]tate police power which trenches upon the constitutionally protected freedom …… even though enacted pursuant to a valid state interest, bears a heavy burden of justification … and will be upheld only if it is necessary, and not merely rationally related, to the ccomplishment of a permissible state policy.” McLaughlin v. Florida, 379 U.S. 184, 196; 85 S.Ct. 283, 290 (1964); Griswold v. Connecticut, 381 U.S. 479, 497, 85 S. Ct. 1678 (1965); Ravin v. State of Alaska, 537 P. 2d 494,.497 (1975).

“ ‘Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling.’” Griswold v. Connecticut, 381 U.S. 479, 497, 85 S. Ct. 1678 (1965); Bates v. Little Rock, 361 U.S. 516, 524, 80 S. Ct. 412,417 (1960); Roe v Wade, 410 U.S. 113, 155, 93 S.Ct 705, 35 (1973); Ravin v. State of Alaska, 537 P. 2d 494, 497 (1975).

“Where certain ‘fundamental rights’ are involved, the U.S. Supreme Court has held that regulation limiting these rights may be justified only by a ‘compelling state interest’ … and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake.” Roe v. Wade, 410 U.S. 113, 155; 93 S.Ct 705 (1973).

E. Due process of Law Is Fundamental Not Frivolous

“No person shall be ...deprived of life, liberty, or property, without due process of law.” This is fundamental, not frivolous. Amendment V, Constitution of the United States. State of Maine denies that the Plaintiff has been deprived “of his liberty and

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property without due process of law” secured by Amendment V to the Constitution of the United States. Id. ¶ 15.

The Due Process Clause ……“ ‘raises no impenetrable barrier to the taking of a person's possessions,’ or liberty, or life. Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or p roperty.” Cary v Piphus, 435 U.S. 247, 259; 98 S Ct. 1042(1978).

“The Fifth Amendment has been described as providing protection against all government invasion ‘of the sanctity of a man’s home and the privacies of life.’ ” Ravin v. State of Alaska, 537 P. 2d 494, 503 citing Boyd v. U.S., 116 U.S. 616, 630, 6 S.Ct. 524 (1886).

“[T]he guaranty of due process ….demands only that the law shall not be unreasonable, arbitrary, or capricious and that the means selected shall have a real and substantial relation to the object sought to be attained.” Nebbia v. New York, 291 U.S. 502, 525; 54 S.Ct. 505 (1934).

“And, unless justified as a valid exercise of the police power, the act assailed must be declared unconstitutional because the enforcement thereof will deprive [Plaintiff of his] property without due process of law.” Liggett Co. v. Baldridge, 278 U.S. 105, 111; 49 S.Ct.57, 59 (1928).

“Due process…has represented the balance … for the liberty of the individual …and the demands of organized society.” Poe v. Ullman, 367 U.S. 497, 542. (1961).

Not being able to tax the plaintiff for growing marijuana for private use has nothing to do with public health and safety, therefore violates the “due process of law”

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clause of Amendment V. See Cmplt. ¶17 mislabeled as ¶13; Defendants Motion p.11, 12.

III. JUDICIAL REVIEW

A. Introduction

Chief Justice Marshall stated: “The province of the court is, solely, to decide on the rights of individuals.” Marbury v. Madison, 5 U.S. (1 Cr.) 137 170 (1803).

Making it a “crime” to grow a usable amount of marijuana is an “intrusive regulation [and] the usual judicial deference to the legislature is inappropriate.” Moore v. East Cleveland, 431 U.S. 494, 499 (1977).

“It is only where rights…are being, or about to be, affected prejudicially by the…. enforcement of a statute that its validity may be called in question by [the plaintiff] and determined by an exertion of the judicial power.” State of Texas v. Interstate Commerce Commission, 258 U.S. 158, 162 (1922).

“[A] statute purporting to have been enacted to protect the public health…or the public safety, has no real or substantial relation to those objects, is a palpable invasion of [plaintiff‘s] rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the constitution.” Mugler v. Kansas, 123 U.S. 623, 661; 8 Sup. Ct. Rep. 273; (1887).“

[L]egislative authority to abridge [plaintiff’s liberty and ] property rights … can be justified only by exceptional circumstances and, even then, by reasonable regulation only, and that legislative conclusions based on findings of fact are subject to judicial review.” Nebbia v. New York, 291 U.S. 502, 543; 54 S.Ct. 505, (1934).

“A case can be decided on either of two grounds, one involving a constitutional

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question, the other a question of statutory construction … the Court will decide only the latter”. ‘“When the validity of an act …is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.’” Ashwander v. TVA, 297 U.S. 288, 347, 348; 56 S.Ct. 466, 472 (1936).

B. Rational Relationship Standard

The State of Maine claims “the standard of review that applies to an evaluation of the marijuana …statutes…[is] under the rational relationship standard.” See Defendants Motions p.11. The requirement for this standard of review requires there is no injury to fundamental rights. Marijuana is not a fundamental right. and no other fundamental rights are implicated. The State of Maine “does not have to show that its marijuana laws are necessary” or reasonable. The “enactments should be resolved in the legislature, not in the courts.” Id.p.11.

Amendment IV of the Bill Rights amended to the Constitution of the United States does not say: “The right of the people to be secure in their persons, houses, papers and effects, against” irrational “searches and seizures.”

The Maine Constitution does not say: “The Legislature, …shall have full power to make and establish all” rational “laws and regulations .” Me. Const. Art. IV, pt 3, § 1

“In a long series of cases this Court has held that where fundamental personal liberties are involved, they may not be abridged by the States simply on a showing that a regulatory statute has some rational relationship to the effectuation of a proper state purpose.” Griswold v. Connecticut, 381 U.S. 479, 497. Emphasis added.

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C. Reasonableness Standard Of Review

Plaintiff claims the validity of 22 M.R.S.A. § 2383(1) and 17-A M.R.S.A § 1117(2)(D) are to be “analyzed under the Fourth Amendment's reasonableness standard. The Fourth Amendment's provides specific protection for ‘houses, papers, and effects.’” Soldal v. Cook County, 506 U.S. 56, 70(1992).

“[T] he central inquiry under the Fourth Amendment … the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.” Terry v. Ohio, 392 U.S. 1, 19 (1968) “[I] t is necessary ‘first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen.’” Terry v. Ohio, 392 U.S. 1, 21,22 (1968):;

“Reasonable under the Fourth Amendment requires a careful balancing of ‘the nature and quality of the intrusion on the individual's Fourth Amendment interests' against the Countervailing governmental interests at stake.” Graham v. Connor , 490 U.S. 386, 396 (1989).

“The validity of regulatory “measures are challenged on the ground that they transgress the Constitution, and thereupon it becomes the duty of the court, in the light of the facts in the case, to determine whether the regulation is reasonable and valid or essentially unreasonable, arbitrary and void.” Norfolk & W.R. Co. v Public Service Commission of West Virginia 265 U.S. 70, 74 (1924).

“The question in each case is whether the legislature has adopted the statute in exercise of a reasonable discretion, or whether its action be a mere excuse for an unjust discrimination, or the oppression or spoliation of a particular class.” Holden v. Hardy,

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169 U.S. 366, 398 (1898) 18 Sup. Ct. Rep. 383

III.CONCLUSION

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ORDER ON PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS and MOTIONS FOR SUMMARY JUDGMENT,DEFENDANT'S CROSS-MOTION FOR JUDGMENT ON THE PLEADINGS, MOTION FOR INJUNCTION and MOTION TO STRIKE

STATE OF MAINE SUPERIOR COURT

CUMBERLAND ,ss

CIVIL ACTION DOCKET NO: CV  06-707

MICHAEL DEE

Plaintiff

V.

STATE OF MAINE

Defendant

ORDER ON PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS and MOTIONS FOR SUMMARY JUDGMENT, DEFENDANTS CROSS-MOTION FOR JUDGMENT ON THE PLEADINGS, MOTION TO INJUNCTION and MOTION TO STRIKE

This matter comes before this Court on Plaintiff’s motion for judgment on the pleadings per M. R. Civ. P.12(c), Defendants cross motion for judgment on the pleadings, Plaintiff’s motion for summary judgment per M.R. Civ P. 56(c), Defendants motion to strike. Plaintiff’s statement of materials facts, and Defendant’s motion to enjoin further lawsuits by plaintiff per M.R. Civ. P. 11(a).

BACKGROUND

Plaintiff Michael Dee (“Dee”), A resident of Windham, Maine, has long been an opponent of Defendant State of Maine’s (“the State”) laws prohibiting personal possession and use of marijuana. In Maine, possession of a usable amount of marijuana is a civil violation. 22 M.R.S.A. 2383(1) 2006. Cultivating marijuana is a crime 17-A m.r.s.a. 1117 (2006) Dee has been found guilty of civil possession several times in the 1990s and in 2000. He filed a complaint for declaratory judgment in this court in

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December 2006. Contending that he has a fundamental right to possess marijuanaand that Maine’s laws violate his constitutional rights, particularly his due process rights and his right to be free from unreasonable searches and seizures. Dee has pursued similar challenges in state and federal courts for approximately twelve years. In Federal court, he filed a declaratory judgment action regarding the marijuana laws in 1995 due to fear of prosecution, which was dismissed for lack of standing, as he had not yet been prosecuted for a violation of those laws. See Dee v. Reno, No. 95-CV-29-P-H (D. Me. 1995.) # The United States Court of Appeals for the first circuit affirmed the dismissal of the case, and the United States Supreme Court denied certiorari. Dee v. Reno, 519 U.S. 873 (1996). Dee’s petition for rehearing was denied . Dee v. Reno 519 U.S. 1001 (1996). Dee filed several similar lawsuits in the district court, all of which were dismissed on res judicata grounds.# culminating in an order enjoining Dee from filing additional federal lawsuits without permission of the court.#

In 1999, Dee began his quest in state court , filing a declaratory judgment action to contest the validity of Maine’s law presuming unlawful furnishing of marijuana over a certain quantity, 17- A M.R.S.A. 1106(3)(A), and its laws against possession of the drug. This Court (Calkins, J.) dismissed the lawsuit, as Dee was not being prosecuted at the time and had not alleged a violation of his fundamental constitutional rights and the Law Court affirmed the dismissal. Dee v. Attorney General, No. Mem-99-59 (Apr. 30,1999). The following year, Dee “invited” this court (Delahanty, J. ) to “amend” those same marijuana laws and the Law Court again affirmed this court’s dismissal of that declaratory judgment action as this Court lacks the authority to alter the State’s drug laws. See Dee v.State, No.Mem-00-132 (Oct.27, 2000).

Also in 2000, Dee received a summons following his demonstration for legalization of marijuana at the State House, during which he was carrying a marijuana plant that police seize. See Dee v. State, 2001 Me. Super. LEXIS 14 AT *1. Following a trial in the Maine District Court, Dee was found guilty of civil possession of marijuana, he appealed to this court, arguing that the statute was unconstitutional.# Id. At 2. This Court (Atwood, J.) rejected his arguments and upheld the judgment, having determined that no authority supported Dee’s argument that marijuana use is constitutionally protected. Id. at *4. The law Court also upheld the decision, noting that the law does not offend any fundamental rights.State v. Dee, No. Mem-01-59 (June 26,2001). That same year, this court (Crowley, J.) dismissed another suit brought by Dee following a 1999 demonstration that he had staged on a Portland Street. Dee v. State, 2001 Me. Super. LEXIS 59 AT *1. Because that demonstration had not resulted in his arrest or in the seizure of the plant that he was carrying, Dee claimed that the marijuana laws was being arbitrarily enforced.. Id. This challenge, too, was unsuccessful, and this Court granted the States Motion for judgment on the pleadings because the constitutional challenge did not present a “justiciable controversy,” and was barred by res judicata. Id. at *2-3 Again, the Law Court affirmed that result. Dee v. State, No. Mem-02-1 (Jan. 16, 2002).

In 2003, Dee returned to federal court in attempt to persuade the court to allow him to bring another challenge to state and federal marijuana laws. The district court refused, explaining that Dee still lacked standing to challenge the federal law because there was no indication that federal authorities were threatening to prosecute him, and any case similarly would have to be dismissed on res judicata grounds. Dee v. U.S., 241 F. Supp. 2d 50, 51 (D. Me.2003). The district court noted, however, that Dee had been found guilty of violating Maine’s marijuana law, but a challenge to that law would be frivolous because there is no fundamental right to use marijuana,and most jurisdictions’ laws have been upheld because the drug represents a “ threat to individual health and social welfare.” Id. The case pending before this court , therefore, is the latest in a long line of nearly identical challenges that Dee has brought regarding the marijuana laws.

Here, Dee first moved for judgment on the pleadings, and the State filed a cross-motion for judgment on the pleadings. Dee then moved for summary judgment, and the State opposed the motion and moved to strike his statement of material facts. The State also seeks an injunction to prevent Dee from filing similar lawsuits in State court without obtaining permission of the Court. The Court will address each motion in turn.

DISCUSSION

1. Motion and Cross-Motion on the Pleadings.

Maine law provides that “[a] fter the [pleading are closed but within such time as not to delay the trail, any party may move for judgment on the pleadings.” M.R. Cic. P. 12(c). At that stage, the Court will assume that all factual allegations in the complaint are true” because such a motion is treated as a motion to dismiss for failure to state a claim“.

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Stevens v. Bouchard, 532 A2d 1028, 1029-1030 (Me. 1987). But the Court is not required to credit any “legal conclusions “ stated in the complaint. Id. At 1030.

The only facts relevant to the Court’s decision are that Dee has been found guilty of violating Maine’s civil possession statute in the past, and has waged a campaign against the marijuana laws, both in and out of court, for over a decade. Other than these facts, which accepts as true, Dee’s complaint contains much legal argument regarding the supposed unconstitutionality of the marijuana laws, which he claims violates his fundamental rights and right to due process. All his arguments, as noted above, have been rejected by Maine’s state and federal courts, along with a vast majority of courts in other jurisdiction. See Kuromiya v. U.S., 37 F. Supp. 2d 717, 727 (D. Pa. 1999) (stating that “there is no fundamental right to use marijuana in any context”; U.S. v. Fogarty, 692F.2d 542, 547 (8th Cir. 1982). ( stating that “there is no fundamental constitutional right to import, sell, or possess marijuana” and applying rational basis review). Simply put, usage of marijuana has not been recognizes as a fundamental constitutional right. Dee’s challenge, therefore, is subjected only to rational review.

Enacting laws to prohibit the use, cultivation, and distribution of marijuana is well within province the legislature. See State v. Brown, 571 A.2d 816, 820 (Me. 1990) (It has long been settled law that the State possesses the “ police power” to pass general regulatory laws promoting the pubic health, welfare, safety and morality”). Thus Dee’s only recourse in his quest to change the marijuana laws is to present his cause before the legislature. This court cannot change the marijuana laws, and explicitly finds that

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there currently is no basis for invalidating them because the legislature had a rational basis for enacting them, and they do not encroach upon any fundamental right. Given this, Dee is not entitled to a declaratory judgment in his favor, as there is no legal basis upon which he could recover. His motion for judgment on the pleadings is denied and the State’s cross-motion for judgment on the pleading is granted.

2. Motion for Summary Judgment & Motion to Strike Statement of Material Facts.

Dee has filed two motions for summary judgment on the basis that, as a matter of law, he is entitled to a declaratory judgment that Maine marijuana laws are unconstitutional. The state opposes the motions and also moves to strike his statement of material facts because it does not comply with M.R. Civ.P.56(h).# As this Court has granted the State’s cross -motion for judgment on the pleadings, effectively ending this case, the motions for judgment and motion to strike are denied as moot. 3. Motion for an Injunction to Prevent Further Litigation.

In addition, the State moves for an injunction to prevent Dee from filing further lawsuits in state court. It argues that, given Dee’s repeated, unsuccessful claims, he lacks good grounds required to support his pleadigs or motions under M.R. Civ. P. 11(a). Thiscourt has the discretion to “enjoin a party from filing frivolous and vexatious lawsuits.” Spickler v. Key Bank of s. Me., 618 A.2d 204,207 (Me. 1992). When seeking such an injunction, a party must demonstrate that “ a pattern of abusive and frivolous

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litigation” has occurred. Id. Such an injunction does not prevent a party from seeking redress in the courts when he or she has a valid claim, but rather serves as a “ screening mechanism” to protect potential defendants from harassment brought on by baseless claims.” Id.

Here, the State has satisfied its burden to show a pattern of frivolous and vexation suits. Over the span of twelve years, Dee has repeatedly and unsuccessfully attempted to litigate this issue in state and federal courts, described in detail above. At every turn, courts, have informed him that his claims have no legal merit and that the legislature, not the judiciary, is the proper forum for addressing this issue. Thus the Court enjoins him from filing further lawsuits in Maine courts to challenge the constitutionality of the State’s civil and criminal marijuana laws without prior approval from the court.

The entry is: Plaintiff’s motion for judgment on the pleading is DENIED

Plaintiff’s motions for summary judgment are DENIED

Defendant’s motion to strike is DENIED.

Defendant’s motion for judgment on the pleadings is GRANTED.

Judgment is entered in favor of Defendant.

Defendant’s motion for injunctive relief is GRANTED. Plaintiff hereby is ENJOINED from filing further lawsuits in Maine courts to challenge the marijuana laws without prior approval of the court.

The clerk shall incorporate this Order into the docket by reference pursuant to M.R. Civ. P. 79(a).

Date June 25, 2007 Robert E. Crowley Justice, Superior Court

Plaintiff asks this court to recognize that the marijuana laws cause actual injury to fundamental rights to liberty and property protected by the Amendments IV and V of the Constitution of the United States.Plaintiff asks this court to review these marijuana laws 22 M.R.S.A. 2383(1) and 17-A M.R.S.A. § 1117(2)(D), under the reasonableness and necessary standard.

For all of the foregoing reason , the State of Maine’s Cross Motion for Judgment on the Pleading must be denied. To grant the State of Maine’s motion would be deprivation of rights under the color of law.

The Plaintiff Motion for Judgment on the Pleading must be granted.

Dated: March 9, 2007

MICHAEL J. DEE, pro se,

 P.O. Box 2021 786 Roosevelt Trail

Windham, Me. 04062

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